4 Ways to Reduce a Felony to a Misdemeanor in California

In California, a felony can be reduced to a misdemeanor in 4 ways:

1. Accept a plea bargain to a lesser offense,
2. Complete a pretrial diversion program,
3. File a Penal Code 17(b) motion, or
4. Show that one or more “elements of the crime” are missing.

These are each discussed in detail below.

1. Accept a Plea Bargain to a Lesser Offense

If the prosecutor agrees, you can get a felony charge reduced to a misdemeanor by pleading guilty to the lesser offense. In exchange for the guilty plea to the misdemeanor, the district attorney will drop the felony charge.

This binding agreement is negotiated through the plea bargain process. It can begin as early as the arraignment. Plea deals can be finalized at any point up to the trial.

Most California criminal cases are resolved through plea bargaining. You benefit by knowing what your sentence will be, rather than going through the risks of a trial.

An example of a plea bargain is a prosecutor offering to lower your felony DUI causing injury charge to the misdemeanor “wet” reckless. If you agree and take the plea, your felony charge gets reduced to a misdemeanor.

2. Complete a Pretrial Diversion Program

You may be eligible to get a felony dismissed – not merely reduced to a misdemeanor – by completing California’s mental health diversion (Penal Code 1001.36 PC),

Mental health pretrial diversion is a treatment program that lasts up to two years. Courts approve pretrial diversion only if all of the following six conditions are met:

1. you suffer from a mental health condition other than:
   • antisocial personality disorder,
   • borderline personality disorder, or
   • pedophilia;
2. the disorder played a significant role in the commission of the alleged offense,
3. a qualified mental health expert thinks that you would respond to treatment,
4. you consent to diversion and agree to comply with the terms of the treatment,
5. you waive your right to a speedy trial, and
6. the court does not think that you pose an unreasonable risk of danger to public safety.¹

Note that California offers two other types of pretrial diversion programs that can get misdemeanor charges dismissed:

• misdemeanor diversion, including the drug diversion program (Penal Code 1000 PC), and
• military or veterans diversion (Penal Code 1001.81 PC).

3. File a Penal Code 17(b) Motion

In California, you can file a 17(b) motion to request the court to reduce your felony charge to a misdemeanor after probation is completed. These motions are available only if:

• you were convicted of a wobbler offense (crimes that can be charged as either felonies or misdemeanors), and
• you received a sentence of probation rather than incarceration.²

Therefore, you are ineligible for a 17(b) reduction if the judge sentenced you to state prison, county jail, or even a suspended prison sentence. (It does not matter if your prison sentence was replaced by a county jail sentence under California’s “realignment” law under AB 109.)

Examples of Wobblers

17(b) motions apply only to wobblers, not “straight felonies.” Common wobblers that can be reduced from a felony to a misdemeanor are:

• assault with a deadly weapon (Penal Code 245(a)(1) PC),
• burglary (Penal Code 459 PC),
• child endangerment (Penal Code 271),
• criminal threats (Penal Code 422 PC),
• grand theft (Penal Code 487 PC),
• lewd acts with a minor (Penal Code 288 PC), and
• statutory rape (Penal Code 261.5 PC).

When to File 17(b) Motions

17(b) motions can be filed at any of the following three junctures in your case:

1. After your preliminary hearing – this is the pretrial proceeding where prosecutors have the burden to prove to the judge there is “probable cause” you committed the charged crimes. If the judge finds there is probable cause you committed a wobbler, you can file a 17(b) motion asking that the offense be charged as a misdemeanor.
2. At the sentencing hearing – this occurs after you enter a guilty plea or are found guilty at trial, and the judge imposes such terms such as probation, fines, and victim restitution. If the judge imposes prison, you are ineligible for a 17(b) reduction.
3. Once probation has been completed – this is when your case is closed because you complied with all the court-ordered terms. If the judge accepts your 17(b) motion, your conviction will be for a misdemeanor rather than a felony.

17(b) Factors

When deciding whether to grant your 17(b) motion, the court will consider the following factors:

• the nature of your offense,
• specific facts of your case,
• your compliance with the terms of probation, including whether you were able to secure an early termination,
• your criminal history,
• evidence of rehabilitation,
• your behavior since being convicted,
• your age and personal history,
• character references, and
• how a reduction could benefit you.³

Prosecutors are free to oppose a 17(b) motion and argue against it in court. Though in many cases, I can persuade the prosecutor to support a 17(b) motion. If this happens, the judge will usually grant it.

17(b) Outcomes

If your 17(b) motion is granted, the judge will reduce your conviction from a felony to a misdemeanor. Once your case is closed, you may be able to pursue an expungement.

However, some consequences of the old felony conviction will persist. These include the following:

• You will have to continue registering as a sex offender if you had to before,
• If the felony was a serious crime or a violent crime that added a “strike” under California’s Three Strikes Law, the strike will remain. This means if you are convicted of another strike offense in the future, your penalties will increase.⁴
• You may be subject to collateral consequences from the federal government, such as ineligibility to hold certain offices, and
• Certain licensing boards may not recognize the felony reduction and disqualify you from getting certified.

4. Show that One or More “Elements of the Crime” Are Missing

Some misdemeanors become felonies with the addition of certain facts. By showing that those facts are not present, you can get your criminal charge reduced to a misdemeanor.

An example of how this works is with domestic violence law in California:

Spousal battery (Penal Code 243 PC) is a misdemeanor. However, spousal battery causing corporal injuries (Penal Code 273.5 PC) is a wobbler.

If the prosecutor files felony charges, you may be able to get it reduced to a misdemeanor by showing that the alleged victim did not suffer a corporal injury. The infliction of a corporal injury is what separates the misdemeanor from the wobbler offense.

Using More Than One Way to Get a Felony Reduced to a Misdemeanor

In some cases, I can use two or more of the above methods to get your felony reduced.

For example, let’s say you are accused of sexual assault/rape (Penal Code 261 PC) – a straight felony. I then plea bargain the charge down to sexual battery (Penal Code 243.4 PC), which is a wobbler. Then once you are done with probation, I can file a 17(b) motion to have it reduced to a misdemeanor.

What are the benefits of getting a reduction?

There are many benefits of getting a felony reduced to a misdemeanor. Some of the most important are:

• not having to admit to a felony conviction on a housing, loan, scholarship, or job application,
• retaining eligibility for certain professional licenses such as medical and attorney licenses,
• not being sentenced as a repeat offender if you get convicted again in the future (unless your prior offense was a “strike”),
• being able to expunge the offense, and
• restoring gun rights (unless your offense is related to domestic violence or you are barred under federal law).

Potential employers will often refuse to hire you if a background check reveals that you are a convicted felon. Misdemeanors are far more likely to be overlooked or disregarded. The effect that this can have on your professional success, post-conviction, is significant.

Can I get an expungement?

Once your charge is reduced to a misdemeanor in California, you should be eligible for a records expungement under Penal Code 1203.4 as long as:

• probation is done, and
• you served no prison time.

Note that expungements cannot:

• un-suspend your driver’s license,
• restore your gun rights under Penal Code 29800 PC,
• relieve you of your duty to register as a sex offender under Penal Code 290 PC, or.
• erase past “strike” convictions – they will still count as “strikes” if you are convicted in the future.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Felony probation: A re-examination of public risk – American Journal of Criminal Justice.
• Probation and Felony Offenders – Federal Probation.
• Does evidence really matter? An exploratory analysis of the role of evidence in plea bargaining in felony drug cases – Law and Human Behavior.
• Felony plea bargaining and probation: A growing judicial and prosecutorial dilemma – Journal of Criminal Justice.
• A Multisite Evaluation of Prosecutor-Led Pretrial Diversion: Effects on Conviction, Incarceration, and Recidivism – Criminal Justice Policy Review.

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